Rickaby and Repatriation Commission
[2000] AATA 1045
•28 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1045
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/534
VETERANS' APPEALS DIVISION )
Re BRIAN RICKABY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member
Date28 November 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - cervical spondylosis – lumbar spondylosis – intermediate or special rate
Veterans' Entitlements Act 1986 ss 6C, 7(1)(a), 9(1)(e),23, 24, 29, 120, 120(A)
Keeley v Repatriation Commission (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 27 AAR 144
REASONS FOR DECISION
Mr M J Sassella, Senior Member Dr P D Lynch, Member
On 3 October 1995 Brian Rickaby ("the Applicant") lodged an informal claim (T4) with the Repatriation Commission ("the Respondent") in which he sought a Disability Pension.
On 23 October 1995 the Applicant lodged a formal claim for a Disability Pension (T5). He claimed for conditions of poor eyesight, poor hearing, lower back, irritable bowel syndrome, dermatitis (arms and hands), dizziness, fainting, hypertension, effects of drinking, haemorrhoids, tension headaches, depression/guilt, bladder/liver, post-traumatic stress disorder (PTSD), effects of malaria and effects of smoking.
In a decision dated 2 February 1996 (T12) the Respondent accepted as war-caused the conditions of bilateral sensorineural hearing loss (BSHL), irritable bowel syndrome, PTSD/alcohol abuse with somatic symptoms, malaria, chronic bronchitis, contact dermatitis and hypertension. Rejected were the claims for poor eyesight, back pain and haemorrhoids. A Disability Pension payable at 90 per cent of the general rate was granted with effect from 9 July 1995.
On 13 March 1996 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review (T13) in respect of the three rejected conditions.
On 28 May 1997 the Respondent accepted as war-caused conditions of bilateral tinnitus and gastro-oesophageal reflux and assessed pension at 100 per cent of the general rate with effect from 26 August 1996 (T21).
On 4 June 1997, haemorrhoids and PTSD with alcohol abuse and somatic symptoms were accepted as war-caused with effect from 3 July 1995, correcting the previously incorrect date of effect of 9 July 1995. The rate payable was 100 per cent of the general rate (T21).
On 24 June 1998 the Respondent decided under s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T17) that the correct diagnoses for Mr Rickaby's back pain were intervertebral disc degeneration C5-6 and C6-7, and L3-4 and L4-5 lumbar intervertebral disc lesion. A Dr Sahukar had provided information on Mr Rickaby's behalf yielding this result. The condition was still rejected as war-caused.
On 9 March 1999 the VRB decided to affirm the Respondent's decision concerning Mr Rickaby's back condition (T21). This meant that the Applicant's claim for what had become described as intervertebral disc degeneration C5-6 and C6-7 and lumbar intervertebral disc lesion L3-4 and L4-5 was still rejected. The VRB affirmed the Respondent's decision to assess the rate of pension at 100 per cent of the general rate as of 3 July 1995. The application for review concerning poor eyesight was withdrawn.
On 12 April 1999 the Applicant lodged with the Tribunal an application for review of the decision of the VRB (T1).
At the hearing the Applicant was represented by Ms J Buchanan, an advocate with the Legal Aid Commission, and the Respondent was represented by Ms S Breuer.
The documents and supplementary documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibits TD1 and TD2) were taken in as evidence in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 A11 R1 R2 R3 R4 R5 Report of Dr Whitmill Various taxation documents Statement of Brian Rickaby Report of Professor Sambrook Report of Professor Sambrook Report of Dr Keshava Report of Dr Miller Applicant's Statement of Facts and Contentions Report of Dr Chapman Statement of Bruce Cleaver Statement of Brian Rickaby Report of Dr Burns Additional Service Documents Report of Dr Burns Clinical notes from Dr Whitmill Respondent's Statement of Facts and Contentions 6 July 1999 1994 – 1999 10 August 1999 15 December 1998 30 September 1999 5 October 1999 9 November 1999 1 June 2000 5 May 1967 6 July 1999 6 June 2000 30 September 1999 various 5 November 1999 various 6 June 2000
LEGISLATION
Mr Rickaby served in the Australian Army from 1 February 1967 to 31 January 1969. He served in Vietnam from 21 November 1967 to 9 November 1968, which constitutes operational service as defined in section 6C of the Veterans' Entitlements Act 1986 ("the Act"). Section 7(1)(a) of the Act provides that a person who has rendered operational service is taken to have also been rendering eligible service.
In determining the standard of proof that Mr Rickaby must satisfy, sections 120(1) and 120(3) of the Act apply. These sections require the Tribunal to find that the Applicant's conditions of intervertebral disc degeneration C5-6 and C6-7 and lumbar intervertebral disc lesion L3-4 and L4-5 were war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for such a finding.
Mr Rickaby lodged his claim after 1 June 1994, therefore section 120A of the Act also applies. It requires the Tribunal to be reasonably satisfied about the war-caused nature of Mr Rickaby's claimed conditions in accordance with any Statements of Principles issued by the Repatriation Medical Authority.
In Repatriation Commission v Keeley (2000) 98 FCR 108, Lee and Cooper JJ held, at 123, that in the absence of a contrary intention clearly disclosed, a person whose claim has been determined by the Repatriation Commission under the Act has an accrued right to have his or her claim assessed in accordance with the Statement of Principles in force at the date of the determination of the claim. Mr Rickaby's claim for Disability Pension was determined by the Repatriation Commission on 2 February 1996 and the relevant Statements of Principles in force at that date are instrument number 101 of 1995 for cervical spondylosis, as amended by instruments 330 of 1995 and 354 of 1995.
An alternative argument regarding the effect of the decision in Keeley (supra) is that the current Statement of Principles applies and that an earlier Statement of Principles is applicable only in so far as it is more beneficial than the current instrument.
Statement of Principles Instrument No 101 of 1995 as amended by No 330 of 1995 and 354 of 1995 provides, as relevant:
"1. Being of the view that there is sound medical-scientific evidence that indicates that cervical spondylosis and death from cervical spondylosis can be related to operational service rendered by veterans…the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of that service are:
…
(fa) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
…
(h)suffering a trauma to the cervical spine before the clinical worsening of cervical spondylosis.
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(h) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(g) to 1(h) apply only where:
(a)the person's cervical spondylosis was contracted before a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the cervical spondylosis and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
'trauma to the cervical spine' means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of the injury and treatment, such evidence may be considered;
…"
Section 29 of the Act provides:
"29 Guide to the assessment of rates of veterans' pensions
(1)The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of veterans' Pension" setting out:
(a)criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b)methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.
…
(4)Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, pr review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
…"
In this matter, it is the provisions of the Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition ("GARP") that must be applied.
FACTS
Mr Rickaby was born on 12 August 1945. He enlisted in the army on 1 February 1967 and was discharged on 31 January 1969. He engaged in operational service between 21 November 1967 and 9 November 1968 in Vietnam.
From the report by Dr M Burns, a physician, dated 30 September 1999 (Exhibit R1), it appears that before joining the army Mr Rickaby left school at age 16 in the United Kingdom. He worked on a farm for 18 months. He came to Australia at age 18. He worked here as a builder's labourer and then travelled for 12 months before being conscripted.
After discharge Mr Rickaby had a series of jobs. He worked for a carrying firm driving a utility for about two years. He then worked as a builder's labourer and qualified as a carpenter. He worked as a carpenter until June 1999. He was self-employed from 1986 to 1996.
RELEVANT MATERIAL IN EXHIBITS TD1 AND TD2The issues before the Tribunal relate to Mr Rickaby's conditions of cervical spondylosis and lumbar spondylosis. There is also an issue as to whether Mr Rickaby qualifies for payment at the intermediate rate under s 23 of the Act. The survey of Exhibits TD1 and TD2 that follows concentrates on evidence related to these issues. There are two sets of Tribunal documents. The first set is Exhibit TD1. It consists of 109 folios. The second set is Exhibit TD2, consisting of 11 folios. Exhibit TD1 is considered first.
The Applicant's service records are provided in T3. These show that the Applicant was admitted to a military hospital on 10 March 1968 and that he was discharged on 28 March 1968 (T3, folio 9).
In Mr Rickaby's statement in the final medical board summary (T3, folio 11) amongst the conditions he cites as experienced during service are headache (July 1968, Vietnam), fracture of nasal bones (March 1968, Vietnam) and lumbo sacral strain (April 1967, Kapooka). The medical officer wrote (T3, folio 12):
"Had lumbo sacral strain soon after commencing basic training. Was seen by Dr Chapman (orthopaedic surgeon) who found nothing abnormal although an X Ray showed a spina bifida occulta in the first lumbar region. Still gets painful on movement. Had fracture of nasal bones in Vietnam in Mar[ch] 1968. Reduced under GA in 8 Fd Amb."
On clinical examination nothing abnormal was detected in the spine. A reduction of fractured nasal bones was noted as the only operation performed on the Applicant during service.
Mr Rickaby's claim for a Disability Pension (T5) referred to "sore lower back". He referred to "heavy kit bags, having to sleep on hard wet ground, etc" as to how service caused the disability.
The Respondent in its decision on Mr Rickaby's claim (T12) rejected the claim in respect of "back pain". The Respondent's reasons were that there was no Statement of Principles (SoP) for back pain. Looking at the available evidence the medical opinion was that the condition was not attributable to the carrying of heavy loads or of having to sleep on hard, wet ground or to any of the other conditions associated with Mr Rickaby's eligible service.
In T14, a submission prepared for the Applicant on 1 May 1997 by the Legal Aid Commission of NSW Veterans' Advocacy Service, the Applicant's back pain was addressed. The writer referred to the remarks written by the medical officer and referred to earlier in T3 at folio 12 in which Mr Rickaby's lumbo sacral strain soon after commencing basic training was mentioned. The writer referred also to a report by Dr Chapman, an orthopaedic surgeon, dated 5 May 1967 in which the doctor noted that Mr Rickaby's back pain was aggravated by the cold, a condition to which Mr Rickaby was exposed during operational service. The writer argued that Mr Rickaby's back pain as described in the service medical records as "lumbo sacral strain, April 1967 Kapooka", which was a pre-existing condition before operational service, was aggravated by conditions of service in 3 RAR Vietnam which included carrying a heavy ration pack and ammunition as well as damp conditions and an inability to obtain appropriate clinical management during Mr Rickaby's operational service.
At T16 is a statement dated 10 March 1997 written by Mr Rickaby. He said that he felt that the problems affecting his back had definitely been aggravated by his service in Vietnam because of the conditions he endured in his 12 months there. He suffered pain while out on operations which had to be endured. This was aggravated by his having to carry a heavy ration pack, etc, gun, ammunition and by continually being in wet clothing as a result of monsoon rains or crossing streams, etc and sleeping on damp ground during operations.
At T17 a delegate of the Respondent determined that Mr Rickaby's cervical spine and lumbar spine conditions were not war-caused because he had back ache prior to going to Vietnam and there was no definite incident of accident while he was on active service. There was no evidence to relate back problems to service.
Dr A K Sahukar, a surgeon, prepared a report on Mr Rickaby's spinal problems dated 1 May 1998 (T19). In that report he made the following relevant points:
Mr Rickaby in 1998 was working as a contractor three days a week and was very selective in what type of work he did because of constant pain his neck and back.
He suffered from back ache on and off while in active service but he did not refer to any incident of accident while on active service.
During training at Singleton before going to Vietnam he had back ache on and off but never seriously complained to a medical officer despite his discomfort.
As at May 1998 Mr Rickaby complained of back ache in the lower back with pain referred into the sacroiliac joint. Pain in the groin and right hip were getting worse. Back pain was aggravated by exertion, bending too long or attempting heavy work. He got pain and stiffness in his neck and referred pain to his right shoulder. The neck and back pain had been going on "for a few years" but had worsened in 1998. He was taking panadol daily.
On examination there was definite tenderness over the cervical muscles on the right side. All neck movements were painful especially rightward movements. There was no obvious lumbar spine deformity. He could bend forward to finger tips two feet from the floor. Lateral flexion and rotation to the left were definitely painful.
Cervical spine X rays and CT scans showed gross degenerative changes with narrowing of the intervertebral disc space between C5/C6 with narrowing of the intervertebral disc space and intervertebral foramina.
Lumbar spine investigations showed degenerative changes in the posterior vertebral joint with minimal narrowing of the intervertebral disc space between L3/L4 and L4/L5. There was no congenital deformity seen.
Mr Rickaby was suffering from gross osteoarthritis in his neck more than his back. He had nerve root pain between the fifth and sixth nerve and he had referred pain in his right shoulder. Pain in his groin was due to adductor muscles getting very sore. There was no evidence of any osteoarthritis or restriction in movements of the hip. The movements were nevertheless painful. X rays showed no arthritis in the hip joint.
Dr Sahukar had advised Mr Rickaby how to look after his neck. He gave him back and stretching exercises to do. The doctor thought Mr Rickaby's osteoarthritis of the neck would likely get worse with age. However, provided he followed certain exercises for the neck and back, and avoided straining, he would continue doing a building job for another five or six years.
Dr M G Miller, a physician, had prepared a report dated 10 December 1998 (T20). In that report Dr Miller made the following relevant points:
In his work Mr Rickaby was avoiding two storey work. He employed a labourer and his son part-time to handle heavy work. He regularly contracted out. However, even preparing quotations could be difficult because he had marked claustrophobia and could not enter enclosed spaces. He used a friend for occasional such work. He was working one to three days a week for four hours a day. He inspected on site the work done by his son and by contractors and then retreated to his home office to do limited bookwork. He worked at most 17¾ hours a week.
Mr Rickaby's cervical spondylosis caused him pain on moving his neck. This is why he was not driving. The pain radiated to his right shoulder and he had crepitus on moving his head.
His first neck symptoms developed during battle training before Mr Rickaby went to Vietnam.
"He was required to climb an obstacle course made of logs three feet apart set at an angle of 45 degrees and then jump off the other side. He slipped between the third and fourth log, landing first on his lumbar spine and then his shoulders and fell to the ground. He attended a regimental aid post and was given light duties. He … had bruising over his buttocks and his shoulders and remained with a sore back and neck for weeks."
The condition was exacerbated in South Vietnam when he was playing rugby football and was deliberately struck in the face by the knee of an opposing player while he was in the front row of a scrum. His nose was broken and his head was forced backwards. His neck was sore for two to three weeks after that. It was made worse because the same thing happened the next week. Mr Rickaby's neck remained sore intermittently but settled down after about 18 months. The pain in his neck recurred about 15 years earlier and was steadily worsening.
As regards Mr Rickaby's lumbar spondylosis he had lumbar pain on bending or heavy lifting. While Mr Rickaby's main problem at work was said to be his neck, his lumbar spine prevented him from doing any heavy lifting or bending. He had organised his work so that he did not have to do this.
Dr Miller saw the same X ray and CT scan reports as Dr Sahukar.
As regards the intermediate rate, Dr Miller said that Mr Rickaby's work capacity was restricted to between eight and 20 hours a week but his incapacity was due not just to accepted conditions but also to his cervical spondylosis. Mr Rickaby's lumbar spondylosis would not prevent Mr Rickaby from working because he could organise his work around that disability.
Dr Miller saw Mr Rickaby's cervical spondylosis as war-caused. He injured his neck prior to operational service. He suffered a trauma to the cervical spine in the incident at Singleton. However, in Vietnam he suffered two severe injuries when was kneed in the face causing severe hyperextension of his neck. He injured his nose and suffered at least two to three weeks of pain and discomfort in the neck. This satisfied the SoP for cervical spondylosis being used by Dr Miller (SoP instrument no 161 of 1996) in that injuries during war service caused a material aggravation of his cervical spondylosis which had been contracted before his relevant war service. There was a reasonable hypothesis that Mr Rickaby's war service aggravated his injury and his cervical spondylosis therefore related to war service. If Mr Rickaby's cervical spondylosis was accepted as war-caused then he would qualify for payment at the intermediate rate because he could work more than eight but less than 20 hours a week as a result of his accepted disabilities alone.
The VRB in T21 describes the evidence it had from the Applicant in respect of his cervical spondylosis.
The incident at Singleton was covered in greater detail. Mr Rickaby had been taken to Maitland Hospital and X rays were taken. He was given painkillers and linament and discharged after two days. He was on light duties for about a week back at camp. He was not bedridden and returned to full duties.
The incident in Vietnam where he broke his nose occurred about 2½ months later. The medical attention he received for the broken nose was provided by a Regimental Aid Post. He had a sore shoulder as a result of this injury and was given pain killers. There was no strapping or splinting of his shoulder. He was placed on light duties for about a week. He returned to playing football, received another knock on the nose, and his nose was bandaged. Again he was placed on light duties. Mr Rickaby said he broke his nose a third time in "a scuffle". As a result of these injuries Mr Rickaby had been experiencing pain in his shoulder and back.
Mr Rickaby said he reported pain for about one week after each of these three incidents. However, in Nui Dat he was on active duty and had to put up with the pain in his neck and back. He took disprin to cope with the pain.
Mr Rickaby told the VRB that he had never sustained a work injury that might have affected his neck or back.
The VRB found against Mr Rickaby in relation to both spondylitic conditions. This was mainly because, while there was evidence of injuries to Mr Rickaby's nose in Vietnam in football matches and a fight, there was no evidence of a discrete injury to the lumbar spine or cervical spine as a result of the trauma to the nose. This made it difficult to satisfy the relevant SoP. There was also no evidence of a lumbar spondylosis existing before Mr Rickaby went to Vietnam which was exacerbated in Vietnam. The VRB was influenced by Mr Rickaby's pension claim where he attributed his back problems to sleeping on hard and wet ground and carrying kit bags.
There was no reference to cervical spondylosis or injuries to the neck as having occurred during service in the Applicant's final medical board report. There was also no evidence of any pre-existing cervical spondylosis that could have been worsened during Mr Rickaby's operational service. Again, the relevant SoP did not appear satisfied.
As regards the rate of Mr Rickaby's Disability Pension, the VRB decided that the intermediate rate was not applicable because the main reason for Mr Rickaby's inability to work other than part-time relates principally to his condition of cervical spondylosis, a non-accepted condition. The VRB also noted Mr Rickaby's evidence that he refused a considerable amount of work because of a management policy not to undertake too many jobs at one time. This limits his work and is a factor not related to his accepted conditions.
The Tribunal documents in Exhibit TD2 relate to Mr Rickaby's grant of an Invalidity Service Pension in 1999. There is nothing of direct relevance to the issues in the present application in Exhibit TD2.
THE APPLICANT'S EVIDENCEThe Applicant provided a written statement dated 10 August 1999 (Exhibit A3). In it he stated as follows:
He has had problems with his neck and back since a training accident a Singleton in 1967. He slipped and fell on an obstacle course. This resulted in bruising to his shoulders, lower back and buttocks. He saw the regimental aid post (RAP) staff and was given light duties. Pain persisted in his back and neck for some weeks.
He believes his condition was made worse in Vietnam when he played rugby. While in the front row of a scrum a player from the other team struck him in the face with his knee. This forced his head back and broke his nose. The RAP put a heavy plaster on the nose. His neck was sore for some weeks.
He played rugby the next week and was injured in the same way a second time. He did not play again. His neck remained sore and tender for 16 to 18 months, on and off.
About "15 years ago" (1984) the pain in the neck began to trouble him again and seemed to be getting worse.
On 6 June 2000 the Applicant provided a second statement (Exhibit A11) in which he made the following new and relevant comments:
He attended school in Yorkshire, England until 15 or 16 years of age. He gained no secondary school qualifications.
He worked as a farm hand in Yorkshire until 1964 (19 years of age). He emigrated to Australia in 1964 where he worked as a farm hand in New South Wales for seven or eight months. He then worked as a builder's labourer for about six months. He then travelled in the Northern Territory and Queensland for about a year before returning to New South Wales to work as a farm labourer until called up for service in Vietnam in early 1967.
In the army he did basic training at Kapooka for 12 weeks. He was allocated to infantry. He trained further at Singleton, Cannungra and Liverpool. He injured his back and neck training in Singleton.
He served in Vietnam from 21 November 1967 to 9 November 1968 as a reinforcement in 3 Battalion. He fractured his nose and injured his neck playing football on two occasions in Vietnam. He described certain violent incidents he was involved in while in Vietnam.
His post-service employment was:
·1968-1973: a carrier delivering parcels in Parkes. Employer: Neil Parker.
·Six weeks: truck driver. Employer: Parkes Industries.
·One year: semi-skilled carpenter. Employer: Ashmont Homes.
·1975-1976: semi-skilled carpenter. Employer: Anton Baleman.
·1976-1978: semi-skilled carpenter. Employer: Gerald Holman.
·1979-1983: semi-skilled carpenter and labourer. Employer: Bill Page.
·1983-1986: carpenter. Employer: Ivan Duchnaj.
·1980: obtained builder's licence.
·1980 onwards: self-employed builder and working for other builders.
·1991: formed partnership, Rickaby and Cleaver Partnership, with Bruce Cleaver. They undertook extensions, cottage and concrete work all around Parkes. Mr Rickaby worked five days a week for at least 40 hours. They had a steady flow of work which was evenly divided between them.
·1994: partnership dissolved. Mr Cleaver thought Mr Rickaby was not doing his share of the work and that he was carrying Mr Rickaby. "I was crook. I was getting snarley and wound up. I used to go off the deep end with customers. Bruce had to calm me and the customer down. I was late starting work if I was feeling a bit seedy."
·1994-1999: Mr Rickaby employed his son as a labourer on and off. He could work 30 to 40 hours a week at times. Another labourer was employed as required. He and his son had work disagreements.
·1995 onwards: Mr Rickaby reduced work hours because of neck pain and inability to get on with people. He began to do light work only. His hours were 36 to 40 hours in 1995, 30 to 32 hours in 1996 and 25 to 26 hours in 1997.
·1996-1997: Mr Rickaby formed a partnership with his wife. He did light work only, preparing quotes, organising building materials, supervising jobs and doing bookwork.
·1998: Work hours were down to 16 to 18 hours a week. Dr Whitmill, Mr Rickaby's general practitioner, told him he did not consider him fit to be doing the work and to reduce his hours and do lighter work. Late in 1998 he told Mr Rickaby to give up work because he was not managing the lighter work.
·1999: Mr Rickaby began to wind up working on 25 June 1999 and ceased entirely on 16 July 1999 because of stress and neck pain. He applied for a service invalidity pension on 9 September 1999.
Mr Rickaby could not turn his neck left or right. He could not stoop or bend down, He could not work above his height because he could not look up or down.
Mr Rickaby enjoyed his work. He prided himself on doing a good job. He wanted to keep working until aged 60 in his business. He could have retired comfortably at 60. He in fact retired at 54.
The Applicant provided further details of his neck problems:
He had neck pain from the time of the first injury at Singleton. He rubbed his neck and took painkillers to relieve the pain. Since discharge he has used deep heat cream on and off on his neck.
His neck condition worsened after 1984. He uses deep heat or a heated wheat bag most nights to ease the pain. He has taken panadol nearly every day for years to relieve neck pain. He has also taken panadeine forte, feldine, baulen, panamax, naprosen and dolobid for pain relief. He had physiotherapy at Parkes Hospital for about 15 years for his neck. He has had "a lot" of physiotherapy since he stopped working. "The physiotherapist told [him] she can't offer much help because [his] neck is in such bad condition."
The Applicant provided further details of his back problems:
He has had back pain since the injury at Singleton. During Vietnam he took pain killers for it as needed. Carrying heavy packs in Vietnam most days made his back pain worse. He carried ammunition, machine gun rounds, a 200 launcher, three days of food rations, water, 200 SLR rounds and a claymore mine. "It weighed about 100 pounds."
Since discharge he has worn a back brace. Since leaving the army he has never felt his neck is any good. He has used deep heat cream and a heated wheat bag on and off for his back since leaving the army. He tried a chiropractor a couple of time in Parkes but the treatment did no good.
The Applicant provided further details of his stress problems:
He began seeing psychiatrist Dr Keshava in 1998 at the suggestion of another Vietnam veteran. He has seen Dr Keshava only twice because he has to see him in the city and he hates the city. He takes aropax every day for stress.
He has stress problems. He wakes after a couple of hours and again at 5.30 am. He sleeps four or five hours a night. He has nightmares about Vietnam and feels tired during the day.
He drinks eight to ten schooners of beer during the afternoon and evening each day. He drinks a half middie of port every night before bed and a middie of "Baileys" once or twice a week before bed. Alcohol helps him to relax before sleep.
In oral evidence the following fresh information emerged.
Following the training accident at Singleton X rays were taken. He had two days in Maitland Hospital where he had physiotherapy and was given pain killers. He had no cervical splint.
The Applicant had severe pain in his neck from the first accident that he rated nine on a scale of ten. He found his neck hard to turn. He took panadol for some relief. This was the situation for two weeks. He was on light duties in camp after two days following the accident. He had to rest, lay down a lot of the time and walked around. He still took three or four panadol a day after he returned to duty.
After two weeks he worked but in a way to protect his neck. It was still sore to touch. There were no physical signs of neck problems.
He then discussed the football injuries in Vietnam. He took a couple of panadol tablets a day for a week or so after the first accident. Any movement of the head caused pain.
After the second football game, the next week, there was agony in his neck but especially when he moved it. The pain the second time was "a touch worse" than in the first incident. He worked to protect his neck more and increased his intake of panadols. He began to use a feather pillow to relieve his symptoms.
The Applicant was cared for through the RAP. He was returned to full duty after 14 days. He took no further panadols. He was moved from Vung Tau to Nui Dat. He still had pain in his neck. He did not know if he really felt ready to return to duty. He dealt with the pain by taking panadol as he felt necessary. The pain eased somewhat over time.
In cross examination the following points emerged.
The service documents in Exhibit R2 relate to the broken nose incident in Vietnam on 10 March 1968. They refer only to the fractured nose and mention no neck pain. Mr Rickaby responded that he had mentioned it. He noted it was not recorded. Ms Breuer, for the Respondent, called attention to page four of Dr Miller's report (Exhibit A7) in which it appears that the Applicant told Dr Miller that, "although aware that the neck was aching, he did not think to mention it to the doctor at the RAP and he was not asked about it because all the attention was being paid to his nasal fracture." The Applicant insisted to the Tribunal that he had mentioned his neck problems.
Although the neck pain was worse than the nose pain he received attention for the nose fracture because it was more obvious. The hospital records from March 1968 (Exhibit R2) refer only to Mr Rickaby's nose. No mention is made of any complaints he made about his neck. Mr Rickaby could not recall hospitalisation at all but was certain he would have mentioned his neck pain if put into hospital.
Mr Rickaby said there was no visable bruising of the neck. He confirmed that he had a plaster over his nose but no cervical collar.
Mr Rickaby's light duties after the nose fracture were sweeping and cleaning. He was on these still by the time of the second nose injury. After that event his nose was again plastered. Soon after that he was sent to Nui Dat where his second set of light duties continued.
At all times after the two days in hospital on 10-11 March 1968 he was on duty of some kind. He showered himself. He did up his footwear. He first pushed the broom along when cleaning. He had a sore neck for a long time after but the pain lessened somewhat. He still could not move his head easily when he went into combat.
Mr Rickaby's final medical record in the army (T3, pp11-12) makes no mention of neck pain. The Applicant said that would be because no one asked him about it.
In Mr Rickaby's claim (T5) there is no mention of neck pain. Only "sore lower back" receives attention. Mr Rickaby could not say why he did not mention it. He certainly had neck problems at the time, October 1995.
In Mr Rickaby's statement dated 10 March 1997 (T16) there was no reference to his neck. It was entirely related to back problems. Mr Rickaby could not explain this. He did not recall the circumstances of the preparation of that statement.
Ms Breuer then put comments about the duration of his neck problems to Mr Rickaby. Dr Sahukar (T19) recorded that Mr Rickaby's neck and back pain had (in 1998) "been going on for a few years". This would not seem to agree with Mr Rickaby's assertion that the neck pain had gone on for 15 or more years. Mr Rickaby said that the doctor was probably referring to when the pain had worsened.
Professor Sambrook, a rheumatologist, in Exhibit A4, at page three, recorded that the Applicant had become aware of pain in the neck of a sharp and constant nature "over the last ten years" (as at December 1998). The Applicant recalled telling Professor Sambrook that this was so, but again suggested that this was when the pain began to worsen.
Ms Breuer referred to the VRB decision (T21) where it is recorded that the Applicant told the VRB that his nose was broken three times in Vietnam and that he had back and shoulder pain after each incident. The Applicant agreed he had said this.
Ms Breuer questioned Mr Rickaby about his post-service work. He mainly erected frame work for new houses and renovations. He agreed that for well over 25 years he had done very heavy work affecting all of the muscles in his body, including his neck and back.
In re-examination it was clarified that Dr Miller (Exhibit A7) was the first doctor who had questioned the Applicant about his football injuries. He in fact saw Dr Miller twice for a total of five hours whereas, he said, he saw Professor Sambrook for only 15 minutes. Professor Sambrook did not ask about the football injuries. Mr Rickaby just answered what he was asked.
In response to questions from the Tribunal Mr Rickaby told the Tribunal that he was on full patrols for up to a week about a fortnight after the second injury. He had restricted neck movement but put up with it.
Mr Rickaby admitted to having a poor memory. It had deteriorated. He confirmed that he could not recall hospitalisation and general anaesthetic administered after the first nose break.
PROFESSOR SAMBROOK'S EVIDENCEProfessor P N Sambrook, rheumatologist, provided the reports which were Exhibits A4 (15 December 1998) and A5 (30 September 1999). The relevant material in Exhibit A4 is as follows.
As regards his back pain, Mr Rickaby first became aware of that during basic training at Singleton. This is confirmed by Dr D Chapman, an orthopaedic surgeon, in a report dated 5 May 1967 (Exhibit A9). Dr Chapman noted that Mr Rickaby was treated in hospital on one occasion for two weeks for low back pain although he indicated that the history may have gone back for four or five years prior to service.
Mr Rickaby said that carrying a heavy pack during weekly patrols of three to six days in Vietnam had caused him severe back pain. He did not report it because he thought it would settle and because culturally only severe injuries would be reported.
After discharge the pain settled somewhat but he was aware of low grade discomfort in his lower back region thereafter. Over the last 15 years or so this had become increasingly symptomatic. At the examination in December 1998 he complained of quite severe pain which was constant in duration, of a sharp nature but without any radiation to the buttock region. Over the last 10 years he had also become aware of pain in the neck which is also constant and sharp but does not radiate into any other regions.
Professor Sambrook wrote:
"Apart from the requirement to carry very heavy packs whilst on patrol during his service in South Vietnam, Mr Rickaby is unaware of any specific injuries to his neck or back over that time."
As regards Mr Rickaby's post-service employment, Professor Sambrook wrote that although Mr Rickaby admitted that the building trade involves significant stress on his musculoskeletal system, he was unaware of any specific injury during his working period as a builder that could account for his neck or back problems.
Professor Sambrook found Mr Rickaby's cervical and lumbar spinal movements greatly restricted. He diagnosed that Mr Rickaby suffers from cervical and lumbar spondylosis.
Applying SoP no 53 of 1998 for lumbar spondylosis he did not think that Mr Rickaby satisfied the criteria in regard to heavy physical activity by virtue of his service period in South Vietnam as his exposure in South Vietnam was of too short a duration, especially compared to his work as a builder. However, in X rays taken on 21 April 1998 in the cervical spine there was narrowing of the C5/6 and C6/7 discs with anterior osteophyte formation and moderate intervertebral foramina encroachment bilaterally. In the lumbar spine there were anterior osteophytes at the L3/4 and L4/5 levels and possibly a spina bifida occulta at the first sacral level. CT scans taken on 24 April 1998 did not show any definite spina bifida. In relation to the possible spina bifida, Professor Sambrook said it was worth considering the issues of malalignment or permanent ligamentous instability in regard to the spina bifida. Mr Rickaby complained of significant pain exacerbated apparently by his requirement to carry heavy packs on the background of his spina bifida. It is not unreasonable to argue that there may have been aggravation of malalignment by his service in South Vietnam.
In regard to the cervical spine the history was of much more recent onset with no documentation prior to symptoms before his service period. Given his occupation it is likely that this should be attributed purely to his subsequent occupation.
In Exhibit A5 Professor Sambrook confirms that the incident at Singleton he referred to in Exhibit A4 was the training injury and that this should be regarded as the clinical onset of Mr Rickaby's lumbar spondylosis. Professor Sambrook refers to Mr Rickaby's statement in Exhibit A3 and to the history in Dr Miller's report (Exhibit A7). Both refer to cervical pain following the training injury. If those versions are more accurate than the history Professor Sambrook took it would be reasonable to date the clinical onset of Mr Rickaby's cervical spondylosis from that time.
There would be a reasonable hypothesis that the football injuries described by Mr Rickaby contributed to the clinical onset of cervical spondylosis and are service related by virtue of SoP no 105 of 1995. In his oral evidence Professor Sambrook modified this to say that the injuries would have aggravated the cervical spondylosis. However, Professor Sambrook said that he did "not think there is any evidence that the lumbar spondylosis was aggravated by the football injury".
In his oral evidence before the Tribunal the following additional material emerged.
Professor Sambrook confirmed that the onset of cervical spondylosis would have been prior to Mr Rickaby's operational service if Mr Rickaby's own history in Exhibit A3 and Dr Miller's history in Exhibit A7 are take to be accurate.
He agreed that there is a good chance that football injuries as described by Mr Rickaby would aggravate a pre-existing cervical spondylosis. They would involve quite rapid hyperextension that would lead to a possibly permanent aggravation of the cervical spondylosis.
He addressed SoP no 354 of 1995 concerning cervical spondylosis. That SoP contains a definition of "trauma to the cervical spine" (clause 1). It reads:
"…
'trauma to the cervical spine' means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of the injury and treatment, such evidence may be considered……"
Professor Sambrook considered the elements of the definition met by the two football injuries.
There were "injur[ies] to the cervical spine". There was a force of an extraneous physical or mechanical agent, ie the knee of the opposing player. Acute symptoms developed within 24 hours. He was on light duties for some weeks so the requirement that the signs last for at least one week is met. He seemed to have restricted mobility or range of movement as a symptom.
Professor Sambrook was asked what "acute" means in the context of the SoP definition. He responded that it usually has a temporal meaning as the opposite of chronic. However, in the context of the SoPs he considers it requires some degree of severity also. It should therefore be something that comes on fairly quickly and cannot be trivial. Mr Rickaby would have had acute symptoms following the football injuries if the Rickaby and Miller histories are accepted.
In cross-examination Professor Sambrook confirmed that Mr Rickaby had not mentioned the football injuries to him even though he had asked Mr Rickaby if there were other episodes that he thought specific to his neck. The Professor said he did not attach great weight to Mr Rickaby's failure to refer to the football injuries when he saw Mr Rickaby. His experience was that patients tend to remember different things at different times.
Professor Sambrook did not regard as significant that there was no record of medical intervention involving neck splints or a collar in the medical notes contemporaneous with the treatment for the broken nose. All there was involved the application of plasters and the administering of panadol. The professor said that the panadol could have been for the back or neck or both. He thought that the documentation from the time could be incomplete. It was not unusual in his experience for this to be the situation.
It was put to Professor Sambrook that the initial football injury could not have been severe given that Mr Rickaby played football again the next week. Professor Sambrook said that this was not necessarily so. Footballers can often play when they are carrying injuries. The fact that he played did not necessarily mean that he had a full range of movement in his neck.
It was put to Professor Sambrook that the return of Mr Rickaby to duties involving sweeping and cleaning suggested that he had a range of movement. Professor responded that there may have been some movement but it need not be full range.
Professor Sambrook noted that Mr Rickaby could get up, walk around, shower and do his cleaning duties. It was also put to him that Mr Rickaby had no bruising, he had only some soreness and tenderness; his only medical intervention was panadol (possibly for his nose pain in any event, not his neck); that he was able to sleep; that he could play football a week later; that his light duties were for short periods of less than a week each time; that he went straight to Nui Dat and that he went into combat in Nui Dat only a week or so after arrival. Professor Sambrook saw this as acceptable within the SoP. While the SoP required a degree of severity in symptoms it did require that the veteran be bedridden. Mr Rickaby would have been under pressure to continue to perform. The SoP can accommodate these factors.
In relation to any aggravation to his cervical spine problem caused by Mr Rickaby's post-service employment, Professor Sambrook still thinks that the post-service employment was a more likely aggravating factor to Mr Rickaby's neck problem but it is possible that his Vietnam experience aggravated the injury.
In re-examination Professor Sambrook clarified that the possibility that Mr Rickaby's Vietnam service aggravated a pre-existing neck condition is more than negligible.
Professor Sambrook was directed to clause 3 of SoP no 330 of 1995 which inserted a new clause 1(g) in SoP no 101 of 1995 concerning cervical spondylosis. The new paragraph was, "(h) suffering a trauma to the cervical spine before the clinical worsening of cervical spondylosis". Professor Sambrook said that the football injuries satisfy that paragraph.
ADDITIONAL MEDICAL AND OTHER EVIDENCE BEFORE THE TRIBUNAL
DR WHITMILLExhibit A1 was a medical report by the Applicant's general practitioner, Dr B Whitmill. It was dated 6 July 1999. It said that the Applicant was exhibiting excessive symptoms of PTSD with anxiety depression, aggression and inability to socialise and work with others. He was unfit for work in the doctor's opinion. In a post-script he wrote, "He has increasing neck pain as a result of his cervical spondylosis".
Exhibit R4 was a set of Dr Whitmill's clinical notes pertaining to Mr Rickaby. Although these are extensive and contain reports and opinions received from various specialists they add nothing of any moment to the other medical material available.
TAX ASSESSMENT NOTICESExhibit A2 were Mr Rickaby's tax assessment notices for 1998-1999, 1997-1998, 1996-1997, 1994-1995 and 1993-1994.
DR KESHAVAExhibit A6 was a report by Dr B Keshava, a psychiatrist, dated 5 October 1999. This report is overwhelmingly about Mr Rickaby's PTSD and associated conditions, including alcohol abuse. It mentions that he suffers from cervical spondylosis.
DR M G MILLERExhibit A7 was by Dr M G Miller, a physician, dated 9 November 1999. In this report Dr Miller updated the opinions he expressed in T20 on 19 January 1999. In Exhibit A7 Dr Miller notes that Mr Rickaby gave up work on 16 July 1999. He had major difficulty coping with work because of accepted disabilities of severe deafness, frustration, irritability and problems relating to his customers and employees. His neck had deteriorated and was interfering with Mr Rickaby's sleep. Dr Miller addressed all of these, and several other, conditions in his report. However, in relation to cervical spondylosis, he made the following comments.
He apparently fully accepted the Applicant's version of the events in Vietnam and noted that:
"although [Mr Rickaby was] aware that his neck was aching [after he broke his nose], he did not think to mention it to the doctor at the RAP and he was not asked about it because all the attention was being paid to his nasal fracture."
The neck was aching for one to two weeks afterwards. When the same thing occurred again the next week the same result ensued. The neck continued aching and was sore. He decided to give up rugby because of this and the nose injury. The condition had deteriorated over the years. He had problems at the time of the examination moving his neck. He could not lie in bed with a pillow. He had to lie flat. He had to move his whole trunk to look to one side. His wife directed him when backing his car.
Mr Rickaby's lumbar spondylosis had not changed. It was not severe and he could organise his work by giving lifting jobs to other workers.
He had developed a painful right knee in December 1998. He had a cartilage tear repaired in August 1999. The operation was successful and the knee no longer posed a problem. At examination Mr Rickaby held his cervical spine stiffly. There was a 75 per cent loss of movement but no evidence of any nerve root pressure. His lumbar back movements were reasonably good.
Dr Miller considered that the SoPs concerning cervical spondylosis were satisfied in that the Applicant suffered a discrete injury to his neck by traumatic hyperextension when he was kicked in the face on two separate occasions. He suffered a trauma to the cervical spine before the clinical worsening of cervical spondylosis. He had a trauma to the cervical spine because he had a discrete injury that caused the development, within 24 hours, of the injury being sustained, of acute symptoms and signs of pain and tenderness associated with altered range of movement of the cervical spine. These acute symptoms lasted for at least a week and medical attention was not sought because of the much more serious fracture of the nose. In his opinion there is a reasonable hypothesis linking Mr Rickaby's cervical spondylosis to his service in South Vietnam.
As regards payment at special or intermediate rate, Dr Miller said Mr Rickaby has been able to work only between eight and 20 hours a week as of 3 October 1995. He retired from work on 16 July 1999 and at that time suffered from the non-accepted condition of cartilage tear of the right knee. This was successfully treated by surgery and by 6 September 1999 he was unable to work even eight hours a week as a result of his accepted disabilities and his rejected disability of cervical spondylosis alone.
DR D CHAPMANThe report by Dr D Chapman, orthopaedic surgeon, dated 5 May 1967 was Exhibit A9.
Dr Chapman recorded that Mr Rickaby complained of pain in the lower lumbar region for the previous four or five years. There was no history of any injury. The pain had been quite severe on occasions. He was hospitalised on one occasion for two weeks with physiotherapy and ray treatment. It was aggravated by the cold. Pain lasted for three or four days. The pain had occasionally radiated into the left buttock but had never been accompanied by paraesthesia. X rays of the lumbar and sacral spine were normal apart from a spina bifida occulta of the first sacral region. His complaints appeared genuine. His usefulness to the army might need to be reconsidered.
MR B CLEAVERExhibit A10 was a statement by Mr Rickaby's former partner, Bruce Cleaver, confirming that Mr Rickaby had after 1990 been unable to complete his share of work because of continual back and neck problems. He seemed highly strung on the job and this made it difficult to work with him. His aggression with customers on occasions became a problem. He felt that more of the responsibility was on him because of Mr Rickaby's inability to work on more than one project at a time. Mr Rickaby often showed signs of stress. He had become more unpredictable and unco-operative. The partnership ceased as a viable proposition in May 1995.
DR M BURNSExhibit R1 was a report by Dr M Burns, an occupational physician, dated 30 September 1999. Relevant material from that report is as follows. As regards Mr Rickaby's lumbar disc degeneration he has pains across his back below the belt line. The pain can run into the upper part of his right leg. Mr Rickaby believes the pain began when he had a fall during jungle training in Canungra prior to going to Vietnam. He was put into hospital for two days and was examined by an orthopaedic surgeon who did not believe he had any serious injury. In Vietnam he had no accidents or incidents involving his back. After his return, he says, he had intermittent back problems over the years. Over 10 to 15 years he has been on medication for his back problem. He currently takes non-steroidal anti-inflammatories.
X rays from 21 April 1998 showed some degeneration at L4/5 level and some facet joint sclerosis at L3/5 and L4/5. A CT scan from 24 April 1998 revealed early degenerative changes at L4/5 level. There was no evidence of disc protrusion or collapse.
So far as the cervical spine was concerned, Mr Rickaby saw his neck as by far his major current problem. He said he fractured his nose three times in Vietnam playing rugby union. He was in hospital two days overseas. His neck became painful during that time and has been painful ever since. He could remember no other head injuries or accidents involving his neck before or after service.
His neck had become more painful over the last 15 years and had become a real problem. He was in constant pain. He had ceased mowing his lawn. He had ceased work in June 1999 because of the neck. Driving was difficult because he could not turn his neck. He has seen his doctor and taken anti-inflammatories to no avail.
X rays and a CT scan from April 1998 showed marked degeneration at the C5/6 and C6/7 levels and significant osteoarthritis at C5/6 and C6 levels. There appeared to be some foaminal stenosis at C5 and C6 level associated with apophyseal joint osteoarthritis. Mention was made of the knee operation. The right knee was still slightly painful but improving.
On the question of Mr Rickaby's employment the major disability was his neck, with low back pain and PTSD also present. Mr Rickaby was not capable of working even eight hours a week predominantly because of his cervical spine problems which are permanent. He is unemployable because of a mixture of his accepted and non-accepted disabilities.
In Exhibit R3 Dr Burns wrote on 5 November 1999 that he did not see Mr Rickaby's knee problem as playing a significant part in his decision to cease work. The operation was a success and he would have been able to return to work in four or five weeks.
APPLICANT'S FINAL SUBMISSIONSMs Buchanan referred the Tribunal to Repatriation Commission v Deledio (1998) 27 AAR 144 in which the full Federal Court set out how the Tribunal should approach a case such as this. Their Honours said (at 159-60):
"…
…[T]he course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. …
3. If a SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or of the application of any presumption will be involved.
…"
Applying the Deledio principles. Ms Buchanan urged as a reasonable hypothesis that the Applicant injured his cervical spine in a training accident in Singleton in 1967 prior to his operational service in Vietnam. The injuries he then sustained in Vietnam playing football aggravated the pre-existing cervical spondylosis. Alternatively, the Applicant sustained two football injuries in Vietnam causing severe hyperextension of the neck and the fracture of his nose.
This caused trauma to his cervical spine which satisfies SoP no 105 of 1995 as amended by SoP 354 of 1995.
Ms Buchanan relied on the evidence of Dr Sambrook to the effect that the requirements of the relevant SoP were met as regards the definition of "trauma to the cervical spine".
Ms Buchanan pointed out that the parties had agreed that if cervical spondylosis becomes an accepted disability then the Applicant qualifies for payment at the intermediate rate as of 2 February 1998 and special rate as of 6 September 1999.
RESPONDENT'S FINAL SUBMISSIONS
The Respondent accepts that Mr Rickaby suffered two nasal injuries. The Respondent does not, however, accept that there was a cervical injury associated with the nasal injuries.
Ms Breuer pointed out that the additional service documents (Exhibit R2) are detailed about the nasal fracture. They show that he was hospitalised. He had the nasal reduction. He was on light duties for two days. After that he returned to his unit an was put on light duties.
Mr Rickaby's discharge summary (T3, folio 11) shows that he was hospitalised twice in March 1968, that is on 10-11 March and on 27-28 March. There is no mention made of neck injury or neck pain. Lower back strain and fracture of nasal bones are mentioned. Conditions such as malaria and headaches are mentioned.
Ms Breuer commented that headaches are mentioned frequently in Mr Rickaby's service records (T3 and Exhibit R2). He was prepared to seek medical assistance when he required it. It would be expected that he would complain of neck problems if he had them.
The Respondent argues that Mr Rickaby's neck problems came on much later – in the last 10 (Professor Sambrook) or 15 (Dr Miller) years. The condition was first mentioned to Dr Sahukar who reported on 1 May 1998 (T19). Further, the Respondent argues that the neck condition is wholly attributable to Mr Rickaby's work in the building industry. The Respondent argues that nothing occurred affecting Mr Rickaby's neck during his training at Singleton. Later, Ms Breuer withdrew the suggestion that Mr Rickaby's work as a builder was the sole cause of his neck disability. She said it was the main cause along with age and genetic background.
The Respondent argues that Mr Rickaby has not experienced a trauma to the cervical spine as required by SoP no 354 of 1995. The definition of trauma to the cervical spine in the SoP requires a severe injury. The injury here does not suffice. He was in hospital for only a day for the reduction. He was placed on light duties of sweeping and cleaning for two days. He was able to shower. He was not bedridden. He returned to playing football the next week. He had a second nose reduction and was put onto similar light duties for four or five days. He was transported to Nui Dat where he very soon went on patrols. He was able to "do things". He was not prevented by any neck pain from doing whatever he was required to do. He in fact had no medical intervention related to his neck. The panadol he was administered was very likely for his nasal problem. His neck was not splinted. He was given no surgical collar. If Mr Rickaby's neck movements had been impeded he would not have been permitted out on patrols. He would have put the lives of others at risk. This would not be tolerated.
The Respondent agrees that the Deledio principles apply. However, the Respondent argues that the Applicant fails under step 4 of those principles. The Tribunal can and should find beyond reasonable doubt that that there was no relationship between Mr Rickaby's cervical spondylosis and his war service.
The Respondent also argued that if the Tribunal accepts that the clinical onset of cervical spondylosis was at Singleton, and the incidents in Vietnam aggravated the condition, the evidence for there being an aggravation is not satisfactory. The Applicant relies on Dr Sambrook on this point. Dr Sambrook's evidence was based on his acceptance of a history taken by Dr Miller who is not an orthopaedic surgeon.
FURTHER EVIDENCE AVAILABLE TO THE TRIBUNALAt the hearing the Respondent's representative handed the Respondent's file relating to Mr Rickaby to the Tribunal to permit the Tribunal to see whether there were useful additional documents related to Mr Rickaby's medical history. The Respondent accepted that Mr Rickaby's nose was broken twice in football matches in March 1968 because of the references in T3 at folio 11 to two short periods of hospitalisation in that month. In fact this appears from the additional papers not to be so. In-patient records for the second period, 27-28 March 1968, show that Mr Rickaby was admitted for abdominal pain. He was discharged on full duties. Clinical notes, so far as legible and relevant, record on 27 March 1968:
"Played football 4(?) days ago. After that felt crook [with] aches and pains and diarrhoea, up to 12 motions per day three days ago. Now with soreness of stomach. Cannot wear tight clothing … Anorexia … - no vomiting. …"
The Tribunal has recorded these documents as Exhibit TD2.
THE TRIBUNAL'S FINDINGS
Cervical spondylosis
The acceptance of cervical spondylosis as an accepted disability does require that the Tribunal applies the Deledio process. There is a hypothesis advanced which is in two parts.
First, it is argued that the Applicant sustained an injury to his cervical spine in the falling accident he had during training at Singleton. This was aggravated by the incident in Vietnam in which the Applicant broke his nose. This will be called "hypothesis number one". The Tribunal in this regard finds that there was only nasal fracture in Vietnam. This could, of course, still be sufficient to found an argument for an aggravation. There would then be a service caused disability stemming from operational service.
Second, and in the alternative, the argument is that there was a trauma to the cervical spine caused by the events leading to the nasal fracture during the veteran's operational service in Vietnam. This will be called "hypothesis number two".
The first step in the Deledio case (supra) is satisfied.
The second step is to identify whether there is or was a relevant SoP in force at the relevant date. From the Federal Court decision in Keeley v Repatriation Commission (supra) the appropriate date is the date when the Respondent made the primary decision, ie 2 February 1996. On that date the relevant SoPs concerning cervical spondylosis were SoP no 101 of 1995 (8 March 1995) as amended by SoP no 330 of 1995 (29 August 1995) and SoP no 354 of 1995 (3 October 1995).
The second step in the Deledio case is satisfied.
The third step in the Deledio case is to see whether the hypotheses fit the template provided by the applicable SoPs. In this case the three SoPs result in a requirement that the following central matters be satisfied:
Clause 1(fa) of SoP no 101 of 1995, as amended by SoP no 330 of 1995 and SoP no 354 of 1995, requires that the veteran must have suffered a trauma to the cervical spine before the clinical onset of cervical spondylosis. Hypothesis number two is consistent with this clause.
Clause 1(h) of the same SoP, as an alternative, requires that the veteran must have suffered a trauma to the cervical spine before the clinical worsening of cervical spondylosis. Hypothesis number one would be consistent with this clause.
Clause 2 of the same SoP requires that the factor that applies in clause 1 must be related to any service rendered by the veteran. Both hypotheses are consistent with this clause.
Clause 3 of the same SoP requires that the factor in clause 1(h) can apply only where the cervical spondylosis was contracted before a period, or part of a period, of service to which the factor is related, and the relationship between the condition and the veteran's particular service is a relationship set out in various provisions of the Act, s 9(1)(e) being the relevant provision here. Hypothesis number one would be consistent with this clause.
The definition of "trauma to the cervical spine" in clause 4 of the same SoP would have to be satisfied. This definition requires that there must be:
An injury to the cervical spine. The Tribunal is prepared to accept that there has been an injury to the Applicant's cervical spine. This is attested to by Dr Miller and, on reflection and subject to certain assumptions, by Professor Sambrook.
That injury must have been "caused by the force of an extraneous physical or mechanical agent". In hypothesis number one that would be satisfied by the fall at Singleton. From the transcript at pages 10 and 11 the Applicant says that he went through the middle of four horizontal rails when he fell on them. He fell onto his shoulder and his neck and back onto the ground. In hypothesis number two it would be satisfied by the impact caused by the knee of an opposing player striking Mr Rickaby in the face.
The force must cause the development, within 24 hours, of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the joint. In the case of hypothesis number one this appears satisfied. At page 11 of the transcript Mr Rickaby says he "got shocking pains through [his] neck and [his] buttocks of course and [his] back as well and real pains…". In the case of hypothesis number two Mr Rickaby was taken promptly to hospital and given a nose reduction. His broken nose was immediately obvious. Any injury to the cervical spine would not have been obvious on Mr Rickaby's own evidence in cross-examination. The Tribunal regards this requirement in the SoP as satisfied.
The signs must last for at least a week immediately after the injury occurs unless there is medical intervention. Examples of medical intervention in the SoP refer to splinting, corticosteroid injection or surgery. In relation to hypothesis number one, T3 at folio 12 says that Mr Rickaby had lumbo-sacral strain after his fall at Singleton. He was seen by Dr Chapman, an orthopaedic surgeon, who found nothing abnormal. He clearly received no medical intervention along the lines of splinting, corticosteroid injections or surgery. In addition, there was no cervical spinal damage recorded. Mr Rickaby said in evidence (transcript, page 11) that he was in Maitland Hospital for only two days where he recalls they gave him physiotherapy and pain killers before returning him to his unit on light duties. The Tribunal finds that this injury was insufficient to constitute a trauma to the cervical spine under the SoP. The Tribunal accepts the Respondent's argument that the type of trauma defined in the SoP is intended to be severe. The indications just listed from the evidence indicate that the Singleton injury was not sufficiently serious. Hypothesis number one does not, therefore, satisfy the SoP. Under the Deledio principles, therefore, it is not a reasonable hypothesis. The trauma in Vietnam that is the foundation of hypothesis number two needs now to be considered. There was medical intervention for Mr Rickaby's fractured nose. However, there was no apparent medical intervention on the Applicant's own evidence, for any cervical spine injury. The signs of any cervical spine injury must therefore have lasted for at least a week. The Applicant says that they did. Indeed, they lasted a great deal longer. In brief he argues that they never went away. They reduced with time but re-emerged as more serious in the past 10-15 years. The Respondent argues that, if they were present at all, they were not severe in the first week after the nasal trauma. The Applicant was hospitalised for only a day or so. He was given only pain killers, apparently for his nasal problem. He was able to look after himself, move around, sweep and clean, and play football by the next week. He was transferred soon after and was back on patrol duty within a few weeks of the injury. Perhaps most powerfully the Respondent argued that there is no evidence that the Applicant ever mentioned his cervical spine problem to anyone before he raised it with orthopaedic surgeon, Dr Sahukar (T19) on or about 1 May 1998. It did not appear in any army or medical records, or in the Applicant's 1995 claim for a disability pension (T5). The Tribunal is not satisfied that the hypothesis raised in hypothesis number two contains a factor required by the SoP. There was not a trauma to the cervical spine as described in the SoP.
It is not therefore necessary to consider the fourth element in the Deledio case, whether the Tribunal is satisfied beyond a reasonable doubt that the disability was not war-caused. This is because the requirements in the SoP have not been met.
Lumbar spondylosis
The condition of lumbar spondylosis was also before the Tribunal. There was no argument as regards this condition. This was because the medical evidence was that Mr Rickaby's lumbar spondylosis does not affect his ability to work. Mr Rickaby's rate of pension is already 100 per cent of the general rate. To qualify for the intermediate or special rate the Tribunal must reach a state of reasonable satisfaction that he is hampered in obtaining or continuing remunerative employment because of his accepted conditions. Acceptance of lumbar spondylosis as a war-caused condition would not assist him in this.
Intermediate and special rate
As a result of the above findings the accepted conditions remain as they were before the VRB when it made its decision. In relation to s 23 of the Act which relates to intermediate rate, a number of the requirements are satisfied in Mr Rickaby's case. He has made a claim for a pension or an increased rate of pension (s 23(1)(aa)). He was under age 65 when he made the claim (s 23(1)(aab)). His degree of incapacity has been assessed at over 70 per cent (s 23(1)(a)). The evidence is that the main reason for Mr Rickaby's incapacity to undertake remunerative work other than on a part-time or intermittent basis is his cervical spondylosis. This was his own evidence in Exhibit A11. It was also what he told Dr Burns (Exhibit R1). It was also a point put by Ms Buchanan on behalf of the Applicant (transcript, 7). It is therefore not Mr Rickaby's accepted disabilities alone which prevent him from working part-time. This Tribunal agrees with the reasoning of the VRB in this regard.
Section 23 contains cumulative provisions. Lack of satisfaction of one means that the section as a whole cannot be satisfied. It is not therefore necessary to consider the other provisions in s 23. Intermediate rate is not payable.
Likewise, s 24, which deals with special rate, is not satisfied. Again, some of the requirements are satisfied, but because Mr Rickaby's cervical spondylosis is the main reason he cannot undertake any remunerative work for periods greater than a total of eight hours a week s 24(1)(b) is not satisfied. The Tribunal's findings effectively reflect the conclusion advanced by Dr Burns in his report (Exhibit R1). As with s 23, the requirements in s 24 are cumulative and if any one is not satisfied then special rate is not payable.
CONCLUSIONThe Tribunal has concluded that Mr Rickaby's conditions of cervical spondylosis and lumbar spondylosis are not war-caused as required by the Act. The Tribunal has also concluded that the Applicant does not qualify for payment of Disability Pension at the special rate or the intermediate rate because neither of s 24(1)(b) or s 23(1)(b) of the Act are satisfied.
DECISIONThe Tribunal affirms the decision under review.
I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed: .....................................................................................
AssociateDate of Hearing 7 June 2000
Date of Decision 28 November 2000
Representative for the Applicant Ms J Buchanan
Representative for the Respondent Ms S Breuer
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